Badinter Commission, Opinion No. 1, Part 1. Alain Pellet. (1992).

The Opinions of the

Badinter Arbitration Committee A Second Breath for the Self-Determination of Peoples. 1
EJIL 178.

Opinion No. 2 (Self-determination)

On 20 November 1991 Lord Carrington asked: "Does the Serbian population in Croatia and Bosnia and
Herzegovina, as one of the constituent peoples of Yugoslavia, have the right to self-determination?" The
commission concluded on 11 January 1992 "that the Serbian population in Bosnia and Herzegovina and
Croatia is entitled to all the rights concerned to minorities and ethnic groups.... Republics must afford
the members of those minorities and ethnic groups all the human rights and fundamental freedoms
recognized in international law, including, where appropriate, the right to choose their nationality".[1]
The opinion also extended the principle of uti possidetis to the former Yugoslavia for the first time

Case Concerning Sovereignty Over Pulau Ligitan and Pulau Sipadan

On 2 November 1998, the Republic of Indonesia and Malaysia jointly notified the Court of a Special
Agreement between the two States, signed at Kuala Lumpur on 31 May 1997 and having entered into
force on 14 May 1998. In accordance with that Special Agreement, they requested the Court to
determine, on the basis of the treaties, agreements and any other evidence furnished by them, to which
of the two States sovereignty over Pulau Ligitan and Pulau Sipadan belonged.

Shortly after the filing by the Parties of the Memorials, Counter-Memorials and Replies, the Philippines,
on 13 March 2001, requested permission to intervene in the case. In its Application, the Philippines
indicated that the object of its request was to

“preserve and safeguard the historical and legal rights [of its Government] arising from its claim to
dominion and sovereignty over the territory of North Borneo, to the extent that those rights [were]
affected, or [might] be affected, by a determination of the Court of the question of sovereignty over
Pulau Ligitan and Pulau Sipadan”.

The Philippines specified that it was not seeking to become a party in the case. Further, the Philippines
specified that “[its] Constitution . . . as well as its legislation ha[d] laid claim to dominion and sovereignty
over North Borneo”. The Application for permission to intervene drew objections from Indonesia and
Malaysia. Among other things, Indonesia stated that the Application should be rejected on the ground
that it had not been filed in time and that the Philippines had not shown that it had an interest of a legal
nature at issue in the case. Meanwhile, Malaysia added that the object of the Application was
inadequate. The Court therefore decided to hold public sittings to hear the Philippines, Indonesia and
Malaysia, before ruling on whether to grant the Application for permission to intervene. Following those
sittings, the Court, on 23 October 2001, delivered a Judgment by which it rejected the Application by the
Philippines for permission to intervene.

After the holding of public sittings in June 2002, the Court delivered its Judgment on the merits on 17
December 2002. In that Judgment, it began by recalling the complex historical background of the
dispute between the Parties. It then examined the titles invoked by them. Indonesia asserted that its
claim to sovereignty over the islands was based primarily on a conventional title, the 1891 Convention
between Great Britain and the Netherlands.

After examining the 1891 Convention, the Court found that, when read in the context and in the light of
its object and purpose, that instrument could not be interpreted as establishing an allocation line
determining sovereignty over the islands out to sea, to the east of the island of Sebatik, and that as a
result the Convention did not constitute a title on which Indonesia could found its claim to Ligitan and
Sipadan. The Court stated that that conclusion was confirmed both by the travaux préparatoires and by
the subsequent conduct of the parties to the Convention. The Court further held that the cartographic
material submitted by the Parties in the case did not contradict that conclusion.

Having rejected that argument by Indonesia, the Court turned to consideration of the other titles on
which Indonesia and Malaysia claimed to found their sovereignty over the islands of Ligitan and Sipadan.
The Court sought to determine whether Indonesia or Malaysia obtained a title to the islands by
succession. In that connection, it did not accept Indonesia’s contention that it retained title to the
islands as successor to the Netherlands, which had allegedly acquired it through contracts concluded
with the Sultan of Bulungan, the original title-holder. Nor did the Court accept Malaysia’s contention
that it had acquired sovereignty over the islands of Ligitan and Sipadan following a series of alleged
transfers of the title originally held by the former sovereign, the Sultan of Sulu, that title having allegedly
passed in turn to Spain, to the United States, to Great Britain on behalf of the State of North Borneo, to
the United Kingdom and finally to Malaysia.

Having found that neither of the Parties had a treaty-based title to Ligitan and Sipadan, the Court next
considered the question whether Indonesia or Malaysia could hold title to the disputed islands by virtue
of the effectivités cited by them. In that regard, the Court determined whether the Parties’ claims to
sovereignty were based on activities evidencing an actual, continued exercise of authority over the
islands, i.e., the intention and will to act as sovereign.

In that connection, Indonesia cited a continuous presence of the Dutch and Indonesian navies in the
vicinity of Ligitan and Sipadan. It added that the waters around the islands had traditionally been used
by Indonesian fishermen. In respect of the first of those arguments, it was the opinion of the Court that
from the facts relied upon in the case “it [could] not be deduced . . . that the naval authorities
concerned considered Ligitan and Sipadan and the surrounding waters to be under the sovereignty of
the Netherlands or Indonesia”. As for the second argument, the Court considered that “activities by
private persons [could] not be seen as effectivités if they [did] not take place on the basis of official
regulations or under governmental authority”.

Having rejected Indonesia’s arguments based on its effectivités, the Court turned to the consideration of
the effectivités relied on by Malaysia. As evidence of its effective administration of the islands, Malaysia
cited inter alia the measures taken by the North Borneo authorities to regulate and control the
collecting of turtle eggs on Ligitan and Sipadan, an activity of some economic significance in the area at
the time. It relied on the Turtle Preservation Ordinance of 1917 and maintained that the Ordinance
“[had been] applied until the 1950s at least” in the area of the two disputed islands. It further invoked
the fact that the authorities of the colony of North Borneo had constructed a lighthouse on Sipadan in
1962 and another on Ligitan in 1963, that those lighthouses still existed and that they had been
maintained by Malaysian authorities since its independence. The Court noted that

“the activities relied upon by Malaysia . . . [we]re modest in number but . . . they [we]re diverse in
character and include[d] legislative, administrative and quasi-judicial acts. They cover[ed] a considerable
period of time and show[ed] a pattern revealing an intention to exercise State functions in respect of the
two islands in the context of the administration of a wider range of islands.”

The Court further stated that “at the time when these activities were carried out, neither Indonesia nor
its predecessor, the Netherlands, [had] ever expressed its disagreement or protest”.

The Court concluded, on the basis of the above-mentioned effectivités, that sovereignty over Pulau
Ligitan and Pulau Sipadan belonged to Malaysia.
Case Concerning Territorial Dispute (Libyan Arab Jamahiriya v. Chad)

In 1989, Libya and Chad entered into a "Framework Agreement on the Peaceful Settlement of the
Territorial Dispute between the Great Socialist People's Libyan Jamahiriya and the Republic of Chad" in
order to settle a long-outstanding dispute as to the boundary between the two countries. During the
proceedings Libya claimed that there was no existing boundary and that it was accordingly the Court's
duty to determine it. To the contrary, Chad proceeded on the basis that there was indeed an pre-
existing boundary which simply had to be located by the Court.

Both parties agreed, however, that a 1955 Treaty of Friendship and Good Neighbourliness concluded
between France (as the previous colonial power exercising sovereignty over the territory which later
became Chad) and Libya was binding upon them. One of the matters specifically addressed in this treaty
was the question of frontiers, dealt with in its Article 3 and Annex I.

In its judgment, the Court first examined Article 3 of the 1955 Treaty, together with the Annex to which
that Article refers, in order to decide whether or not that Treaty resulted in a conventional boundary
between the territories of the parties and decide that question in the positive. Said Article 3 of the
Treaty referred to the international instruments which were in force on the date of the constitution of
the United Kingdom of Libya including a Franco-British Convention of 14 June 1898; a declaration
completing the same of 21 March 1899; a Franco-Italian Agreement of 1 November 1902; a Convention
between the French Republic and the Sublime Porte of 12 May 1910; a Franco-British Convention of 8
September 1919 and, finally, a Franco-Italian Arrangement of 12 September 1919.

The Court then recalled that, in accordance with the rules of general international law, a treaty must be
interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their
context and in the light of its object and purpose. It stated that interpretation must be based above all
upon the text of the treaty. As a supplementary measure recourse may be made to supplementary
means of interpretation such as the preparatory work of the treaty and the circumstances of its
conclusion.

According to the Court, the use of the word "recognize" in Article 3 of the 1955 Treaty indicated that a
legal obligation was undertaken by the parties, i.e. that they had accepted that frontier, that is, they had
agreed to draw legal consequences from its existence, to respect it and to renounce the right to contest
it in the future.

In the view of the Court, the terms of the Treaty signified that the parties thereby recognized the
complete frontier between their respective territories. According to the Court it would have been
incompatible with a recognition couched in such terms to contend, as Libya had done, that only some of
the specified instruments contributed to the definition of the frontier, or that a particular frontier
remained unsettled, since otherwise Article 3 of the Treaty and Annex I would have been deprived of
their ordinary meaning. The only task of the Court was thus to determine the exact content of the
undertaking previously entered into by the parties.

Since Article 3 of the 1955 Treaty referred to the international instruments "en vigueur", i.e. in force on
the date of the constitution of the United Kingdom of Libya in 1951, Libya contended that the
instruments mentioned in Annex I and relied on by Chad had no longer been in force at the relevant
date. The Court did not accept these contentions. It argued that to draw up a list of governing
instruments while leaving to subsequent scrutiny the question whether or not they were in force would
have been pointless. The judgment takes the view that the parties agreed to consider the instruments
listed as being in force for the purposes of Article 3, since otherwise they would have not referred to
them in the annex. The judgment further points out that the text of Article 3 clearly conveys the
intention of the parties to reach a definitive settlement of the question of their common frontiers.
Article 3 and Annex I were intended to define the frontiers between the parties by reference to legal
instruments which would yield the course of such frontiers. Any other construction would have been
contrary to one of the fundamental principles of interpretation of treaties, consistently upheld by
international jurisprudence, namely that of effectiveness.

This conclusion reached by the Court was further reinforced by an examination of the context of the
Treaty, and in particular, of the Convention of Good Neighbourliness between France and Libya,
concluded between the Parties at the same time as the Treaty, as well as by its travaux préparatoires.

Having concluded that the contracting parties wished, by the 1955 Treaty, and particularly by its Article
3, to define their common frontier, the Court then thoroughly examined the frontier between Libya and
Chad which resulted from the international instruments listed in Annex I.

The Court next considered the subsequent attitudes of the Parties regarding the boundary. It found that
no subsequent agreement, either between France and Libya, or between Chad and Libya, had called into
question the frontier in this region deriving from the 1955 Treaty. On the contrary, if one took into
account treaties entered into subsequent to the entry into force of the 1955 Treaty, there was support
for the proposition that after 1955, the existence of a determined frontier had been accepted and had
been acted upon by the two parties concerned.

The Court then examined the attitudes of the parties, subsequent to the 1955 Treaty, on occasions when
matters pertinent to the frontiers came up before international fora, and noted the consistency of
Chad's conduct in relation to the location of its boundary.

The Court finally stated that, in its view, the 1955 Treaty, notwithstanding the provisions in Article 11 to
the effect that "[t]he present Treaty is concluded for a period of 20 years", and which provided for an
eventual unilateral termination of the Treaty, had to be be taken to have determined a permanent
frontier, since there was nothing in the 1955 Treaty to indicate that the boundary agreed was to be
provisional or temporary; on the contrary, it bore all the hallmarks of finality. According to the Court,
the establishment of this boundary had to be considered as a fact which, from the outset, had had a
legal life of its own, independent of the fate of the 1955 Treaty. Accordingly, the Court found that the
disputed area belonged to Chad.

Post-judgment developments

On April 4, 1994 the two parties signed an agreement on the practical modalities of execution of the
judgement rendered on February 3, 1994, which provided for the complete withdrawal of Libyan troops
from the disputed territory to be observed by a United Nations observer group. On May 30, 1994,
representatives of the two parties jointly declared that the withdrawal had been completed.

Clipperton Island Arbitration (France v. Mexico)

Clipperon Island is situated in the Pacific Ocean. A French lieutenant on board a commercial vessel
cruising past the uninhabited island declared it to be French territory. The lieutenant notified the French
consulate, which informed the Government of Hawaii and published the declaration of French
sovereignty in the local journal. Very little was then done in relation to the island by the French
authorities. Many years later, Mexican gun-boat landed and forced the three inhabitants to raise the
Mexican flag, claiming that the island bad been discovered by Spain, to which Mexico was the successor
State. The Arbitrator held that the discovery by Spain had not been proved, and that France had not
abandoned her claim and so had title to the Island.

Mere discovery gave a State an 'inchoate title': an option to occupy the territory within a reasonable
time, during which time other States were not allowed to occupy the territory.
To have effective occupation, there should be:
1. Intention and will to act as a sovereign
2. Adequate exercise and display of sovereignty

Eastern Greenland Case (Denmark v. Norway)

Norway occupied Eastern Greenland by Royal Proclamation, claiming that it was terra nullius. Denmark
also claimed this territory and applied to the court to declare the occupation promulgated by the
Norwegian Government is a violation of the existing legal situation and are unlawful and invalid.

The court decided the Eastern Greenland was under the sovereignty of Denmark. Court further held that
a claim to sovereignty based not upon some particular act or title but merely upon continued display of
authority, involves two elements which must be shown to exist:
1. Intention to act as sovereign
 actual display of sovereignty must be accompanied by an intention to act as sovereign
 If extensive display of authority is not possible, State must make clear its sovereign
intentions by other means, e.g. publication of notices of sovereignty in various journals(b)
peaceful and continuous display of state authority

2. Peaceful display of State authority: it is not challenged by other states. Must be continuous

Facts:
The agreement not to obstruct Danish (P) plans with regard to Greenland was what Denmark wanted to
obtain from Norway (D). To this request, a declaration on behalf of the Norwegian government (D) was
made by its Minister for Foreign Affairs that Norway (D) would not make any difficulty in the settlement
of the question.

Issue:
Is a country bound by the reply given on its behalf by its Minister of Foreign Affairs?

Ruling:
Yes. A country is bound by the reply given on its behalf by its Minister of Foreign Affairs. Therefore in
this case, the response by the diplomatic representative of a foreign power is binding upon the country
the Minister represents.

The main source of international law on treaties is the Vienna Convention on the Law of Treaties. The
Convention was ratified by 35 countries but not by the United States. Unilateral statements may also be
binding on states.

Eritrea-Yemen Arbitration

The State of Eritrea and the Republic of Yemen both claimed sovereignty over a group of islands in the
Red Sea and disagreed as to the location of their maritime boundary. The Arbitration Agreement,
between the Parties dated October 3, 1996, required the Tribunal to rule on these two issues in
separate stages.

In its award in the first stage dated October 9, 1998, the Tribunal found that neither Party made a
significantly more convincing case for ownership of any of the islands based on ancient title, as argued
by Yemen, or a succession of title, as asserted by Eritrea. After reviewing the evidence, the Tribunal
decided that Eritrea had sovereignty over the Mohabbakhs, the Haycocks, and the South West Rocks,
because of their proximity to the Eritrean mainland. The Tribunal found Yemen to be sovereign over the
Zubayr group because of its installation and maintenance of lighthouses on certain of these islands and
the inclusion of the Zubayr group in two oil production agreements contracted by Yemen with private
firms. Yemen was also found to be sovereign over the Zuqar-Hanish group on the balance of the
evidence regarding the exercise of the functions of state authority.

In the second award dated December 17, 1999, the Tribunal effected its delimitation of the maritime
boundary between Eritrea and Yemen. While Eritrea was not a party to the United Nations Convention
on the Law of the Sea 1982 (“UNCLOS”), the Tribunal found that many of the relevant elements of
customary international law were incorporated into the corresponding provisions of UNCLOS and that
Eritrea had accepted the application of these provisions by reference to UNCLOS in the Arbitration
Agreement.

The Tribunal ruled that the international maritime boundary between the Parties “shall be a single all-
purpose boundary” that “should, as far practicable, be a median line between the opposite mainland
coastlines.” This solution was not only in accord with precedent but was also familiar to both Parties and
reflected by offshore petroleum agreements entered into by Yemen, Eritrea, and Ethiopia. The Tribunal
then calculated the boundary line resulting from the application of these principles and set out the
geographical coordinates of the international maritime boundary in the dispositif of the award.

Island of Las Palmas Case (US v. Netherlands)

Brief Fact Summary.

Both the United States (P) laid claim to the ownership of the Island of Palmas. While the U.S. (P)
maintained that it was part of the Philippines, the Netherlands (D) claimed it as their own.

Synopsis of Rule of Law.

A title that is inchoate cannot prevail over a definite title found on the continuous and peaceful display
of sovereignty.

Facts.
Both the United States (P) laid claim to the ownership of the Island of Palmas. While the U.S. (P)
maintained that it was part of the Philippines, the Netherlands (D) claimed it as their own. The claim of
the U.S. (P) was back up with the fact that the islands had been ceded by Spain by the Treaty of Paris in
1898, and as successor to the rights of Spain over the Philippines, it based its claim of title in the first
place on discovery. On the part of the Netherlands (D), they claimed to have possessed and exercised
rights of sovereignty over the island from 1677 or earlier to the present.

Issue.
Can a title which is inchoate prevail over a definite title found on the continuous and peaceful display of
sovereignty?

Held. (Huber, Arb.).

No. A title that is inchoate cannot prevail over a definite title found on the continuous and peaceful
display of sovereignty. The peaceful and continuous display of territorial sovereignty is as good as title.
However, discovery alone without subsequent act cannot suffice to prove sovereignty over the island.
The territorial sovereignty of the Netherlands (D) was not contested by anyone from 1700 to 1906. The
title of discovery at best an inchoate title does not therefore prevail over the Netherlands (D) claims of
sovereignty.

Discussion.
Evidence of contracts made by the East India Company and the Netherlands (D) was examined by the
arbitrator. The claims made by the Netherlands (D) were also based on the premise of the convention it
had with the princes and native chieftains of the islands. Hence, at the time of the Treaty of Paris in
1898, Spain was found not to have dominion over the island.
y 4,700 private U.S. claims, ordered payment by Iran (D) to U.S. nationals amounting to over $2.5 billion.

Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras, with Nicaragua
Intervening)
On 11 December 1986, El Salvador and Honduras notified to the Court a Special Agreement whereby the
Parties requested the Court to form a Chamber — consisting of three Members of the Court and two
judges ad hoc — in order to (1) delimit the frontier line in the six sectors not delimited by the 1980
General Treaty of Peace concluded between the two States in 1980 and (2) determine the legal situation
of the islands in the Gulf of Fonseca and the maritime spaces within and outside it. That Chamber was
constituted by an Order of 8 May 1987. The time-limits for the written proceedings were fixed, but
extended several times at the request of the Parties.

In November 1989, Nicaragua addressed to the Court an Application under Article 62 of the Statute for
permission to intervene in the case, stating that, while it had no desire to intervene in the dispute
concerning the land boundary, it wished to protect its rights in the Gulf of Fonseca (of which the three
States are riparians), as well as “in order to inform the Court of the nature of the legal rights of
Nicaragua which are in issue in the dispute”. Nicaragua further maintained that its request for
permission to intervene was a matter exclusively within the procedural mandate of the full Court. The
Court, by an Order adopted on 28 February 1990, found that it was for the Chamber formed to deal with
the case to decide whether the Application for permission to intervene should be granted. Having heard
the Parties and Nicaragua at a series of public sittings, the Chamber delivered its Judgment on 13
September 1990. It found that Nicaragua had shown that it had an interest of a legal nature which might
be affected by part of the Judgment of the Chamber on the merits, with regard to the legal régime of the
waters of the Gulf of Fonseca.

The Chamber on the other hand decided that Nicaragua had not shown such an interest which might be
affected by any decision it might be required to make concerning the delimitation of those waters, or
any decision as to the legal situation of the maritime spaces outside the Gulf or any decision as to the
legal situation of the islands in the Gulf. Within the framework thus defined, the Chamber decided that
Nicaragua was entitled to intervene in the case. A written statement of Nicaragua and written
observations on that statement by El Salvador and Honduras were subsequently filed with the Court.
The oral arguments of the Parties and the oral observations of Nicaragua were heard at 50 public
sittings, held between April and June 1991. The Chamber delivered its Judgment on 11 September 1992.

The Chamber began by noting the agreement of both Parties that the fundamental principle for
determining the land area is the uti possidetis juris, i.e., the principle, generally accepted in Spanish
America, that international boundaries follow former colonial administrative boundaries. The Chamber
was, moreover, authorized to take into account, where pertinent, a provision of the 1980 Peace Treaty
that a basis for delimitation is to be found in documents issued by the Spanish Crown or any other
Spanish authority during the colonial period, and indicating the jurisdictions or limits of territories, as
well as other evidence and arguments of a legal, historical, human or any other kind. Noting that the
Parties had invoked the exercise of government powers in the disputed areas and of other forms of
effectivités, the Chamber considered that it might have regard to evidence of action of this kind
affording indications of the uti possidetis juris boundary. The Chamber then considered successively,
from west to east, each of the six disputed sectors of the land boundary, to which some 152 pages were
specifically devoted.

With regard to the legal situation of the islands in the Gulf, the Chamber considered that, although it
had jurisdiction to determine the legal situation of all the islands, a judicial determination was required
only for those in dispute, which it found to be El Tigre, Meanguera and Meanguerita. It rejected
Honduras’s claim that there was no real dispute as to El Tigre. Noting that in legal theory each island
appertained to one of the Gulf States by succession from Spain, which precluded acquisition by
occupation, the Chamber observed that effective possession by one of the States could constitute a
post-colonial effectivité shedding light on the legal situation. Since Honduras had occupied El Tigre since
1849, the Chamber concluded that the conduct of the Parties accorded with the assumption that El Tigre
appertained to it. The Chamber found Meanguerita, which is very small, uninhabited and contiguous to
Meanguera, to be a “dependency” of Meanguera. It noted that El Salvador had claimed Meanguera in
1854 and that from the late nineteenth century the presence there of El Salvador had intensified, as
substantial documentary evidence of the administration of Meanguera by El Salvador showed. A protest
in 1991 by Honduras to El Salvador over Meanguera was considered too late to affect the presumption
of acquiescence by Honduras. The Chamber thus found that Meanguera and Meanguerita appertained
to El Salvador.

With regard to the legal situation of the islands in the Gulf, the Chamber considered that, although it
had jurisdiction to determine the legal situation of all the islands, a judicial determination was required
only for those in dispute, which it found to be El Tigre, Meanguera and Meanguerita. It rejected
Honduras’s claim that there was no real dispute as to El Tigre. Noting that in legal theory each island
appertained to one of the Gulf States by succession from Spain, which precluded acquisition by
occupation, the Chamber observed that effective possession by one of the States could constitute a
post-colonial effectivité shedding light on the legal situation. Since Honduras had occupied El Tigre since
1849, the Chamber concluded that the conduct of the Parties accorded with the assumption that El Tigre
appertained to it. The Chamber found Meanguerita, which is very small, uninhabited and contiguous to
Meanguera, to be a “dependency” of Meanguera. It noted that El Salvador had claimed Meanguera in
1854 and that from the late nineteenth century the presence there of El Salvador had intensified, as
substantial documentary evidence of the administration of Meanguera by El Salvador showed. A protest
in 1991 by Honduras to El Salvador over Meanguera was considered too late to affect the presumption
of acquiescence by Honduras. The Chamber thus found that Meanguera and Meanguerita appertained
to El Salvador.

With respect to the maritime spaces within the Gulf, El Salvador claimed that they were subject to a
condominium of the three coastal States and that delimitation would hence be inappropriate ; Honduras
argued that within the Gulf there was a community of interests necessitating a judicial delimitation.
Applying the normal rules of treaty interpretation to the Special Agreement and the Peace Treaty, the
Chamber found that it had no jurisdiction to effect a delimitation, whether inside or outside the Gulf. As
for the legal situation of the waters of the Gulf, the Chamber noted that, given its characteristics, the
Gulf was generally acknowledged to be a historic bay. The Chamber examined the history of the Gulf to
discover its “régime”, taking into account the 1917 Judgment of the Central American Court of Justice in
a case between El Salvador and Nicaragua concerning the Gulf. In its Judgment, the Central American
Court had found inter alia that the Gulf was a historic bay possessing the characteristics of a closed sea.
Noting that the coastal States continued to claim the Gulf as a historic bay with the character of a closed
sea, a position in which other nations acquiesced, the Chamber observed that its views on the régime of
the historic waters of the Gulf coincided with those expressed in the 1917 Judgment. It found that the
Gulf waters, other than the three-mile maritime belt, were historic waters and subject to the joint
sovereignty of the three coastal States. It noted that there had been no attempt to divide the waters
according to the principle of uti possidetis juris. A joint succession of the three States to the maritime
area thus seemed to be the logical outcome of the uti possidetis principle. The Chamber accordingly
found that Honduras had legal rights in the waters up to the bay closing line, which it considered also to
be a baseline.

Regarding the waters outside the Gulf, the Chamber observed that entirely new concepts of law,
unthought of when the Central American Court gave its Judgment in 1917, were involved, in particular
those regarding the continental shelf and the exclusive economic zone, and found that, excluding a strip
at either extremity corresponding to the maritime belts of El Salvador and Nicaragua, the three joint
sovereigns were entitled, outside the closing line, to a territorial sea, continental shelf and exclusive
economic zone, but must proceed to a division by mutual agreement. Lastly, as regards the effect of the
Judgment on the intervening State, the Chamber found that it was not res judicata for Nicaragua.

Facts:
The government of the Republic of El Salvador initiated proceedings against Nicaragua as a result of the
conclusion of a treaty by the latter with the US in 1914, known as the Bryan-Chamorro Treaty. The treaty
granted rights to the US for the construction of an interoceanic canal and for a lease of 99 years for the
establishment of a naval base in a part of the Gulf of Fonseca.

According to the Convention that established the Central American Court of Justice, the signatory
nations entered into a solemn agreement to submit to it all controversies or questions arising among
them whatever their nature and origin, imposing no other limitation than the requirement to seek first a
settlement between the respective departments of foreign affairs of the Government concerned.
In 11916, El Salvador brought a complaint before the Court against Nicaragua.

Minquiers and Ecrehos Case

The Minquiers and Ecrehos are two groups of islets situated between the British island of Jersey and the
coast of France. Under a Special Agreement between France and the United Kingdom, the Court was
asked to determine which of the Parties had produced the more convincing proof of title to these
groups of islets. After the conquest of England by William, Duke of Normandy, in 1066, the islands had
formed part of the Union between England and Normandy which lasted until 1204, when Philip
Augustus of France conquered Normandy but failed to occupy the islands. The United Kingdom
submitted that the islands then remained united with England and that this situation was placed on a
legal basis by subsequent treaties between the two countries. France contended that the Minquiers and
Ecrehos were held by France after 1204, and referred to the same medieval treaties as those relied on
by the United Kingdom.

In its Judgment of 17 November 1953, the Court considered that none of those treaties stated
specifically which islands were held by the King of England or by the King of France. Moreover, what was
of decisive importance was not indirect presumptions based on matters in the Middle Ages, but direct
evidence of possession and the actual exercise of sovereignty. After considering this evidence, the Court
arrived at the conclusion that the sovereignty over the Minquiers and Ecrehos belonged to the United
Kingdom.

Reparations for Injuries Suffered in the Service of the UN (Advisory Opinion)

As a consequence of the assassination in September 1948, in Jerusalem, of Count Folke Bernadotte, the
United Nations Mediator in Palestine, and other members of the United Nations Mission to Palestine,
the General Assembly asked the Court whether the United Nations had the capacity to bring an
international claim against the State responsible with a view to obtaining reparation for damage caused
to the Organization and to the victim. If this question were answered in the affirmative, it was further
asked in what manner the action taken by the United Nations could be reconciled with such rights as
might be possessed by the State of which the victim was a national.

In its Advisory Opinion of 11 April 1949, the Court held that the Organization was intended to exercise
functions and rights which could only be explained on the basis of the possession of a large measure of
international personality and the capacity to operate upon the international plane. It followed that the
Organization had the capacity to bring a claim and to give it the character of an international action for
reparation for the damage that had been caused to it.

The Court further declared that the Organization can claim reparation not only in respect of damage
caused to itself, but also in respect of damage suffered by the victim or persons entitled through him.
Although, according to the traditional rule, diplomatic protection had to be exercised by the national
State, the Organization should be regarded in international law as possessing the powers which, even if
they are not expressly stated in the Charter, are conferred upon the Organization as being essential to
the discharge of its functions. The Organization may require to entrust its agents with important
missions in disturbed parts of the world. In such cases, it is necessary that the agents should receive
suitable support and protection. The Court therefore found that the Organization has the capacity to
claim appropriate reparation, including also reparation for damage suffered by the victim or by persons
entitled through him. The risk of possible competition between the Organization and the victim’s
national State could be eliminated either by means of a general convention or by a particular agreement
in any individual case.
Western Sahara Advisory Opinion (Morocco v. Mauritania),

On 13 December 1974, the General Assembly requested an advisory opinion on the following questions :
“I. Was Western Sahara (Rio de Oro and Sakiet El Hamra) at the time of colonization by Spain a territory
belonging to no one (terra nullius) ?” If the answer to the first question is in the negative, “II. What were
the legal ties between this territory and the Kingdom of Morocco and the Mauritanian entity ?”

In its Advisory Opinion, delivered on 16 October 1975, the Court replied to Question I in the negative. In
reply to Question II, it expressed the opinion that the materials and information presented to it showed
the existence, at the time of Spanish colonization, of legal ties of allegiance between the Sultan of
Morocco and some of the tribes living in the territory of Western Sahara. They equally showed the
existence of rights, including some rights relating to the land, which constituted legal ties between the
Mauritanian entity, as understood by the Court, and the territory of Western Sahara. On the other hand,
the Court’s conclusion was that the materials and information presented to it did not establish any tie of
territorial sovereignty between the territory of Western Sahara and the Kingdom of Morocco or the
Mauritanian entity.

Thus, the Court did not find any legal ties of such a nature as might affect the application of the General
Assembly’s 1960 resolution 1514 (XV) — containing the Declaration on the Granting of Independence to
Colonial Countries and Peoples — in the decolonization of Western Sahara and, in particular, of the
principle of self-determination through the free and genuine expression of the will of the peoples of the
territory.

Montevideo Convention on Rights & Duties of States

Done at: Montevideo

Date enacted: 1933-12-26
In force: 1934-12-26

The Governments represented in the Seventh International Conference of American States:

Wishing to conclude a Convention on Rights and Duties of States, have appointed the following
Plenipotentiaries:

Who, after having exhibited their Full Powers, which were found to be in good and due order, have
agreed upon the following:

Article 1
The state as a person of international law should possess the following qualifications:
a. a permanent population;
b. a defined territory;
c. government; and
d. capacity to enter into relations with the other states.

Article 2
The federal state shall constitute a sole person in the eyes of international law.

Article 3
The political existence of the state is independent of recognition by the other states. Even before
recognition the state has the right to defend its integrity and independence, to provide for its
conservation and prosperity, and consequently to organize itself as it sees fit, to legislate upon its
interests, administer its services, and to define the jurisdiction and competence of its courts. The
exercise of these rights has no other limitation than the exercise of the rights of other states according
to international law.

Article 4
States are juridically equal, enjoy the same rights, and have equal capacity in their exercise. The rights of
each one do not depend upon the power which it possesses to assure its exercise, but upon the simple
fact of its existence as a person under international law.

Article 5
The fundamental rights of states are not susceptible of being affected in any manner whatsoever.

Article 6
The recognition of a state merely signifies that the state which recognizes it accepts the personality of
the other with all the rights and duties determined by international law. Recognition is unconditional
and irrevocable.

Article 7
The recognition of a state may be express or tacit. The latter results from any act which implies the
intention of recognizing the new state.

Article 8
No state has the right to intervene in the internal or external affairs of another.

Article 9
The jurisdiction of states within the limits of national territory applies to all the inhabitants. Nationals
and foreigners are under the same protection of the law and the national authorities and the foreigners
may not claim rights other or more extensive than those of the nationals.

Article 10
The primary interest of states is the conservation of peace. Differences of any nature which arise
between them should be settled by recognized pacific methods.

Article 11
The contracting states definitely establish as the rule of their conduct the precise obligation not to
recognize territorial acquisitions or special advantages which have been obtained by force whether this
consists in the employment of arms, in threatening diplomatic representations, or in any other effective
coercive measure. The territory of a state is inviolable and may not be the object of military occupation
nor of other measures of force imposed by another state directly or indirectly or for any motive
whatever even temporarily.

Article 12
The present Convention shall not affect obligations previously entered into by the High Contracting
Parties by virtue of international agreements.

Article 13
The present Convention shall be ratified by the High Contracting Parties in conformity with their
respective constitutional procedures. The Minister of Foreign Affairs of the Republic of Uruguay shall
transmit authentic certified copies to the governments for the aforementioned purpose of ratification.
The instrument of ratification shall be deposited in the archives of the Pan American Union in
Washington, which shall notify the signatory governments of said deposit. Such notification shall be
considered as an exchange of ratifications.

Article 14
The present Convention will enter into force between the High Contracting Parties in the order in which
they deposit their respective ratifications.

Article 15
The present Convention shall remain in force indefinitely but may be denounced by means of one year's
notice given to the Pan American Union, which shall transmit it to the other signatory governments.
After the expiration of this period the Convention shall cease in its effects as regards the party which
denounces but shall remain in effect for the remaining High Contracting Parties.

Article 16
The present Convention shall be open for the adherence and accession of the States which are not
signatories. The corresponding instruments shall be deposited in the archives of the Pan American
Union which shall communicate them to the other High Contracting Parties.

In witness whereof, the following Plenipotentiaries have signed this Convention in Spanish, English,
Portuguese and French and hereunto affix their respective seals in the city of Montevideo, Republic of
Uruguay, this 26th day of December, 1933.

Ratifications as of May 2016

Number of ratifications: 16

Brazil, Chile, Colombia, Costa Rica, Cuba, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti,
Honduras, Mexico, Nicaragua, Panama, United States of America, Venezuela

 As a restatement of customary international law, the Montevideo Convention merely codified

existing legal norms and its principles and therefore does not apply merely to the signatories, but to
all subjects of international law as a whole.[11][12]

 The European Union, in the principal statement of its Badinter Committee,[13] follows the
Montevideo Convention in its definition of a state: by having a territory, a population, and a political
authority. The committee also found that the existence of states was a question of fact, while the
recognition by other states was purely declaratory and not a determinative factor of statehood.[14]

 Switzerland, although not a member of the European Union, adheres to the same principle, stating
that "neither a political unit needs to be recognized to become a state, nor does a state have the
obligation to recognize another one. At the same time, neither recognition is enough to create a
state, nor does its absence abolish it.

 Adopted by the Seventh International Conference of American States, the convention stipulated
that all states were equal sovereign units consisting of a permanent population, defined territorial
boundaries, a government, and an ability to enter into agreements with other states.

 When a state acquires recognition, it gains certain rights, obligations and immunities such as. It
acquires the capacity to enter into diplomatic relations with other states. It acquires the capacity to
enter into treaties with other states.

 The Montevideo Convention on the Rights and Duties of States is a treaty signed at Montevideo,
Uruguay, on December 26, 1933, during the Seventh International Conference of American States.
The Convention codifies the declarative theory of statehood as accepted as part of customary
international law.